Excessive Bail: What Are Your Rights?

Posted By
Scott H. Palmer, P.C.

When a person is arrested and charged with a criminal offense, they are
typically taken in custody to a local law enforcement station, where they
will booked. After being booked, they may be held in a facility within
the law enforcement station, or incarcerated in a county jail. Depending
on the nature of the crime, as well as factors that include their previous
criminal history, the individual may be released pending their first court
appearance, or be required to remain in jail until their court date.

If the allegations against you, or a loved one, are serious enough that
you are not granted release on your own recognizance, you will typically
be required to post bail in order to be released while your criminal case
is pending. Bail is a system in which defendants deposit money with the
court in order to ensure they appear for their court proceedings. If you
fail to appear, you not only face criminal repercussions, including the
issuance of a warrant, but also the forfeiture of the money to the court.
Defendants typically have two options when it comes to bail:

Cash bail – Defendants can post bail in cash with the court, which will then
result in their release from custody. Cash bail should be returned when
a defendant attends all court appearances and their case is concluded.

Bail bond – As defendants may not have enough cash to post the full amount
of bail, they can use a bail bond as an alternative. These surety bonds
are guaranteed by a licensed insurance company, through a bail bond agency,
that also guarantees they will pay bond forfeiture if a defendant does
not appear. Defendants are typically charged 10 to 15 percent of the total
bond amount by the bail bond agency, or use property as collateral.

In less serious cases where bail is set at a lower amount, defendants have
greater ability to secure their release through cash bail or a bail bond.
However, when bail is excessive, it can complicate their goals of being
released from custody during their court process. For many, this means
missing out not only on their freedom, but also missing obligations, family
time, and work – for however long a case may take.

While bail schedules are typically used to set bail, judges can use their
discretion to raise or lower bail as they see fit. Typically, they will
raise bail when individuals have prior convictions, are charged with serious
offenses, and / or are considered flight risks – meaning they are
likely not to appear in court. If bail in your case, or that of your loved
one’s case, is set at an amount that makes it difficult for you
to afford, you have the right to request that it be lowered. An experienced
criminal defense attorney like those at Scott H. Palmer, P.C. can help
you address matters of lowering bail in addition to your defense.

Your Constitutional Rights

Under the Eighth Amendment to the U.S. Constitution, you have the right
to protection from excessive bail. This right ensures you are not to be
unfairly punished for a crime you are only suspected of committing (as
you are considered innocent until proven guilty), and that the government
does not profit unlawfully by raising bail.

Unfortunately, despite this Constitutional right, we see judges across
the country setting excessively and even impossibly high bails. In fact,
excessive bail has become a major issue in our criminal justice system,
and most recently resulted in a federal lawsuit against Harris County
over its questionable bail practices, which were said to impact poor misdemeanor
defendants who sit in jail until their cases are resolved, while those
with money are able to secure their release.

In April, a federal judge issued a landmark ruling declaring Harris County’s
bail practices unconstitutional, and ordered the release of nearly all
misdemeanor defendants within 24 hours of their arrest. That ruling was
appealed by the County, and the results could have major implications
across the country when it comes to the bail system. Dallas County has
already taken steps to create a pretrial division that bases bail on a
person’s risk and criminal history, not their ability to make bail.

Because courts must consider factors other than a defendant’s ability
to pay bail – including the nature of the crime and whether they
pose threats to public safety – defendants who face excessive bail
amounts still need to exercise their rights to seek lowering of their
bail, as well as their right to legal representation when doing so. With
the help of an attorney, defendants can challenge assessments made by
the court regarding their criminal history and public safety risk, and
provide evidence to support why bail should be lowered.

As with any legal matter, every case is different. Whether you have options
when your loved one faces excessive bail is a matter that depends on the
unique facts and circumstances involved. Our legal team at Scott H. Palmer,
P.C. can help review those circumstances, as well as the criminal charges
at hand, in order to provide the representation needed during bail hearings
and throughout the criminal process. To discuss your situation,
contact us for a free consultation.

COMMITTED TO LEGAL EXCELLENCE

Over the years, our firm has continued to collect various honors and awards for the outstanding legal representation we provide. Always striving to help our clients secure the best possible results, we believe in going above and beyond the legal call of duty to help our clients win.

*Scott Palmer is Board Certified in Criminal Law by the Texas Board of
Legal Specialization (2005 to present), David P. Housel, Jr. is Board
Certified in Family Law by the Texas Board of Legal Specialization (2004
to present).